Readers who were interested in my earlier blog post on Brendlin v. California might want to know that the Court has in fact called for a response. According to the docket page, the Court requested the response yesterday; California's Brief in Opposition is due on February 7.

What happens (theoretically) if the state just doesn't respond? I'm just interested in this as a hypothetifcal question...if the AG is too bored or too lazy to respond, what would the Supreme Court do? Just enter judgment in favor of the party seeking the writ? Would that be a "case or controversy"? (I know zilch about conlaw and jurisdiction, obviously).

It is a discourtesy to the Supreme Court not to respond with views on a case when asked for them. But in the event no response were filed, the Court would not enter something like a default judgment. Rather, it would decide on the merits whether or not to grant the petition for certiorari without the benefit of having the State's views. It might still decide not to review the case at all.

I'm confused by the fact that everyone in this discussion seems to assume that a motor vehicle stop always has the driver as its target. That is quite false. Sometimes the target is the vehicle itself, as when a police officer observes a non-functioning signal light or headlight. And sometimes the target is a passenger. The effect is, in all cases, it seems to me, a seizure of the vehicle and all of its occupants, at least in the short term, but the exclusive focus on the driver draws attention away from this.

Just wondering out loud here, but I wonder in what direction the cause and effect relationship goes between what is posted on blogs and what garners attention from the Court (or, more likely in some ways, the Justices' clerks - the pool) before a decision on certiorari. Orin's post is one example, but SCOTUSBlog has their list of cases to watch for ahead of cert decisions, and they have a decent success record too, I believe.

Is it possible that academic bloggers are so finely attuned to what consitutes a good case for cert, or does the cert pool just think so? That's the cynical view. The less cynical view is that Supreme Court practitioners and former clerks do in fact have a good sense of cert-worthy cases due to their experiences, and the blogging is completely independent of the results at the Court.

I have no idea if any of this is actually the case. Rather, like I say, I'm just thinking out loud.

SCOTUSblog does NOT have a good track record of predicting cases to be granted for cert. They are very overinclusive, so while they will identify the petitions that get granted, they also identify many more. But it's not that hard to identify at least a pool from which a couple cases will get granted -- just look for states, wardens, or major corporations as petitioners, or for leading SCOTUS lawyers or firms involved, or for obvious splits (which can be determined by reading the summary of a petition's argument). Anyone with a few hours on their hands can figure out cases that at least make the cut for this smaller pool.

It's a whole different thing altogether to determine, from that smaller pool of cases, which cases will *actually* get granted, and on that score, SCOTUSblog is not especially good, if you compare their pool with what actually gets granted.

Bill, I suppose the cop's target may be the vehicle in some cases, but the driver is still "seized" because the cop turned on his lights and compelled her to pull over. If you want to suppress evidence from an "unreasonable seizure," you have to identify the seizure.

I don't dispute that the driver is included in the seizure even if not the target of it. My point is that there are cases in which the driver is emphatically NOT the target. And I think I can improve the example of action against the vehicle itself. Suppose that instead of a vehicle code violation the car is the property of a drug dealer against which a civil forfeiture order has been issued. The driver is an innocent party - say the drug dealer's teenage daughter. A police officer recognizes the vehicle, determines that it is subject to a foreiture order, and stops it. Isn't this a case of action against the vehicle itself and not the driver?

Isn't this a case of action against the vehicle itself and not the driver?

Your use of "action" is making your question ambiguous to me. If you're talking about the legal proceeding in view, civil forfeiture, yes, you have described an in rem action that is directed against vehicle and not the driver. If you are talking about the acts that the officer in asserting authority over the vehicle, then, no, the officer's action is definitely against the driver, because turning on the lights, siren, etc. is directed at the driver.

In the Fourth Amendment context that this case is in, only the latter meaning is in the right ballpark (and here is the issue is whether the passenger, not the driver, was seized.)

On a broader policy matter (sometimes it's a good idea to look at the forest instead of the trees), if you follow a car long enough you'll find a reason to stop it. Everyone eventually goes a mile above the speed limit, doesn't signal before making a lane change, or otherwise violates the traffic laws. In practice I don't notice this much because I'm a middle aged white guy that the police pay no attention to, but if I were a 20 year old Black guy I'd notice plenty.

The real Fourth Amendment problem is that it's basically dead because the police can always find an excuse to go on a fishing expedition. I don't really care (well, I care a little) about how Brendlin is decided because whatever the answer is won't stop the police from abusing traffic laws to find probable cause.

Maybe the solution would be to have a traffic enforcement department that is separate from the criminal law department and build a Chinese wall between them. (Of course the real answer would be to repeal drug laws which has generated much of the abuse in the first place.)

Sealawyer: I think you have to understand the context. Orin's previous post went to the merits of the california sup ct decision, which Orin thought was wrongly decided. That is, Orin's position and most states and fed. circuits is that when a car is stopped, all persons in said car are "seized" (however briefly) for fourth amendment purposes, a result the california sup ct did not reach.

Most of the commenters were saying that this decision is correct, since its the drivers action that caused the stop, and there is no prob. cause or reasonable suspcicion as to passenger, so the passenger is not seized. If he were considered seized, it would be suspicionless and hence, illegal.

I think the point made was simply that it is wrong to assume that every time a cop pulls a car over, its solely because of the drivers' actions and the cops are only concerned with him. Reality on the streets merits this observation. (imagine drug suspect under surveillance, he gets in car as passenger carrying weighted bag, cops stop car he gets in and immediatley go to passenger side)

As far as tying it to Brendlin; given the myriad of different fact patterns that emerge during traffic stops, and the various reasons for the stop (including passenger activity) it is just simpler and easier to conclude that as a practical matter, when a cop pulls a car over, all occupants (passengers included) are seized (at least for a brief time) until the cop says otherwise.

Kelvin,
I understood the context, and I think Bill made a good point I was just wondering how it really changes the debate. Since I think the debate starts once the car is stopped and not the reason why. Of course that implies that there was PC to stop the car.

Perhaps Orin (or anyone else) can correct me if I'm wrong, but, as far as I can tell, the California supreme court did not reverse, much less analyze, the Court of Appeal's ruling that the stop was unlawful. In fact, holding that the passenger was not "seized" enabled the Ca. supreme court to avoid deciding the lawfulness of the stop, as it no longer mattered.

Sealawyer, thats a valid point, and it seems to me the cal. sup. ct. analyzed the situation from that starting point (after car is stopped). But i think this is the wrong analysis. Often times, its the very reason behind the stop which dictates what the cops can then do. For example, if its a routine traffic stop for say running a red light, with no other criminal activity suspected, i wouldnt expect the cop to pull out his gun and order the driver and then passenger out of the car.

If the same car is pulled over as being a suspected getaway car in an armed robbery that occurred five minutes ago, that level of police activity would likely be appropriate. And of course, nobody would deny if the police did pull their guns and order the passengers to do this and that - it obviously would be a seizure.

The less clear fact patterns are those wherein the cop pulls a car over for speeding or something, and then upon approaching, either sees something (passenger trying to hide something under seat) or smells something (burning cannabis, liquor). Here, depending on what the cop does, the passenger may be targeted and seized or maybe not under the california court's holding. What if the cop tells the passenger he is free to go, but to leave his bag in the car because the cop wants to look into it? This type of ambigous police action happens at airports and train stations all the time. If the person is free to go, doesnt this mean he is "not seized"? And this is where i think the cal. sup. ct.'s opinion causes all kinds of difficulties - not just for the citizens, but the cops, prosecutors and defense bar as well.

As much as the Sup. Ct. abhors bright line rules in 4th amendment cases, this is one area where i think a bright line rule is needed.